House of Representatives Seeks To Clarify Lack Of Liability for Incidental and Accidental Take under Migratory Bird Treaty Act

On November 8, 2017, the House of Representatives Committee on Natural Resources approved an amendment to oil and gas-related legislation, the SECURE Act (H.R. 4239), that is intended to obviate liability for the incidental or accidental take of migratory birds under the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq. (Act).  The amendment, submitted by Congresswoman Liz Cheney (R-WY), provides: This Act shall not be construed to prohibit any activity proscribed by section 2 of this Act that is accidental or incidental to the presence or operation of an otherwise lawful activity.  Section 2 of the Act prohibits more than twenty separate types of actions, such as the hunting, taking, killing capturing, possessing, importing, exporting, or transporting, related to migratory birds native to the U.S. or its territories.  16 U.S.C. § 703(a), (b). The Act provides that engaging in any of the prohibited types of actions subjects an individual or entity to criminal liability, penalties, or both.

The question of whether the Act applies to incidental take has resulted in a Circuit Split.  In January 2017, the Department of Interior’s (DOI) Solicitor issued opinion M-37041 clarifying the U.S. Fish and Wildlife Service’s position that the Act’s prohibition extends to incidental take.  However, the following month, the new administration temporarily suspended that opinion.  The latest DOI Report suggests this position will be reexamined.

Rep. Cheney offered the amendment to clarify the Act’s intent to protect migratory bird populations from over-hunting, poaching, and illegal sales . . . . [A]mbiguous language within the [Act] has caused confusion as to whether otherwise lawful activities are also prohibited simply because they potentially result in the unintended or incidental death of birds.  The ambiguous language has led to overzealous [Bureau of Land Management] guidance and regulations on energy operators in [Wyoming].  The SECURE Act, including the Cheney amendment, passed out of committee and is now headed to the House floor for debate and discussion.

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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